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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Churston Golf Club v Haddock  EWHC 347 (Ch) (23 February 2018)
Cite as:  WLR(D) 140,  2 P &CR 3,  EWHC 347 (Ch),  4 WLR 53,  2 P &CR
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BUSINESS AND PROPERTY COURTS IN BRISTOL
ON APPEAL FROM HHJ CARR sitting in the COUNTY COURT AT TORQUAY & NEWTON ABBOT
2 Redcliff Street
Bristol BS1 6GR
B e f o r e :
| CHURSTON GOLF CLUB
|- and -
John Sharples (instructed by Stephens Scown) for the Respondent
Hearing dates: 15th Feb 2018
Crown Copyright ©
Mr Justice Birss :
"The Purchaser hereby covenants with the Trustees that the Purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto"
The first point
The second point
"46. The covenant in this case creates a fencing easement, and indeed a fencing easement can only be created by such a covenant. This is again supported by Megarry & Wade in the passage already cited, and in Russell v Watts  25 ChD 559. Sugarman v Porter  EWHC 331 (Ch) does no more than seek to construe the wording of a particular covenant, and is not a proposition for the idea that a covenant cannot create an easement.
47. As was made clear in Scamell: Land Covenants and Rowbotham v Wilson  EngR 892, one has to look at the wording of the 1972 covenant. The wording could not be clearer, nor could the intentions to bind successors in title be more apparent. The burden therefore passes, if in no other way, under section 79 of the Law of Property Act 1925.
48. Were the defendant's arguments right – namely that the claimant's only course of action is against the Council – this would fly in the face of the wording and the intention of the 1972 conveyance, which could be circumvented by the land being sold or by the Council ceasing to exist, for example as a result of local authority changes. The wording of the 1972 conveyance, 'forever hereafter' would be without meaning. Whilst I accept the position would be different with an informal oral agreement, that is not the case here.
49. The next question is whether the benefit of the fencing obligation passed to the claimant under the lease granted to him by the Council. In short, was the benefit intended to be personal to the trustees or was it attached to the land. Again it is necessary to look at the wording of the 1972 conveyance. The wording, as already indicated, speaks of an obligation 'forever hereafter' and would have little or no meaning if the benefit could not pass to the claimant. As soon as the trustees sold the land and had no interest in it, or they ceased to exist, it could not be required by the claimant to enforce the covenant; it would have no practical value or purpose. In all the circumstances, I am quite clear the benefit attached to the land passed to the claimant under the lease. This would be true even where the lease is silent on the issue, as one is entitled to look at the surrounding circumstances to assess the intention of the party. Again from the wording of the 1972 agreement, and all the surrounding circumstances, it is apparent that this was a benefit that was always intended to pass to the land. It does so both at common law and pursuant to section 78(1) of the Law of Property Act 1925."